REUTERS | Mike Blake
May 25, 2018

Can God create a stone s/he cannot lift?

Since at least medieval times, philosophers have struggled with what has become known as the “omnipotence paradox“:

“If God is all powerful, can s/he create a stone so heavy s/he cannot lift it?”

Thomas Aquinas and Rene Descartes, among others, would no doubt be relieved to know that the English Supreme Court has now resolved the matter (in Rock Advertising v MWB Business Exchange Centres). At least, that is no doubt what Lord Sumption would like us to think. There may also be some construction lawyers rifling back through recent advices to check whether a swift re-think might be necessary. Continue reading →

REUTERS |
May 23, 2018

The avalanche effect: key issues in modular building

Increasingly, our clients are requesting that we incorporate provisions for modular building techniques into their construction contracts. There seems to be a real trend for including at least some aspects of “modular” into development and other projects.

It is open to debate whether this is driven by improvements in design and adaptability of modular building as a construction method, or by market forces such as labour shortages and rising material costs. The fact remains that modular building is on the increase and brings with it some key considerations in terms of risk. Continue reading →

REUTERS | Ralph Orlowski
May 23, 2018

Show me the way (in contract drafting)

I recently looked at some bespoke drafting that, as Eric Morecombe might have put it, had all the right words, but not necessarily in the right order. To avoid a fracas, I suggested that using a familiar standard form might be a better starting point and would save quite a bit of time. My idea was received with surprising enthusiasm.

There will always be aspects of the standard forms that don’t achieve the collective hopes and dreams of the parties, hence the practice of amending them. But, if you start with the right form, you often find that most of the drafting fits the bill. Continue reading →

REUTERS | Jim Young
May 22, 2018

Fraud and its impact on proceedings, including adjudication

I was in Dublin last week giving a talk to the Irish branch of the SCL. I’d prepared a talk on fraud in arbitration, adjudication and mediation and, during the day, I was made aware of the judgment in WL Construction Ltd v Chawke and Bohan (a thank you is due to Mark Warren in this regard). As it wasn’t a case I was familiar with, I thought I’d take a look and share my thoughts on the blog.

Funnily enough, it is almost exactly 12 months since I last looked at fraud, and on that occasion I borrowed from Lord Denning’s infamous statement in Lazarus Estates Ltd v Beasley that:

“No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.”

When you see what happened in WL Construction, you will realise just how on point Lord Denning was over 60 years ago. Continue reading →

REUTERS |
May 16, 2018

Nearly, but not quite: the difficulties of resisting payment of an on-demand guarantee

It is notoriously difficult to resist payment following a call on an on-demand guarantee or bond. Generally, nothing less than a seriously arguable case of fraud by the beneficiary will suffice. The stringency of this test is backed by strong policy arguments militating in favour of protecting the integrity of the banking system. However, even where a seriously arguable case of fraud is made out, the balance of convenience may weigh against injunctive relief, as demonstrated recently in Tetronics (International) Ltd v HSBC Bank plc. Continue reading →

REUTERS | Dado Ruvic
May 15, 2018

Retention proposals take shape: analysing the text of the Aldous Bill

For many years, parts of the construction sector have pushed for improvement of the market’s treatment of retention monies. Post-Carillion and its devastating impact on suppliers, however, matters may have reached a tipping point.

On 9 January 2018 – a few days before the construction giant’s collapse – the backbencher Peter Aldous introduced the Construction (Retention Deposit Schemes) Bill under Parliament’s Ten Minute Rule.

Given the importance of government support in mustering a majority in the House of Commons, relatively few Private Members’ Bills (PMB) become law. To this end, proponents of the “Aldous Bill”, not least the Waveney MP himself, have been busily promoting its merits within the industry and rallying support among politicians ahead of it being debated by MPs at the second reading. Continue reading →

REUTERS | Alexandre Meneghini
May 15, 2018

20 years of statutory adjudication

The Construction Act 1996 turned 20 this month, which means that for the last 20 years the UK’s construction industry has been subject to its statutory adjudication and payment rules. I was just a couple of years out of university 20 years ago, so I’ve never really known a world without these things (something that Lucy Garrett QC noted in her video for Practical Law). I remember doing presentations to clients in the months leading up to May 1998 on the implications of the Act and, in particular, the payment and withholding notices regimes. It seems a long time ago now!

Looking back, a lot has happened since May 1998 and I thought that I would highlight just a few aspects of adjudication. Given the volume of case law and the limited space I have here, this is by no means a comprehensive review. Continue reading →

REUTERS | Russell Cheyne
May 9, 2018

The fine line between design and implementation: scope of NEC Option X15

Last year, I blogged on the first instance decision of the Scottish courts in SSE Generation Ltd v Hochtief Solutions AG and another. That decision has been overturned by the Inner House, Court of Session (the Scottish equivalent of the Court of Appeal) in an important judgment that sheds light on how the English courts might interpret the provisions of the NEC engineering and construction contract (ECC) that govern the extent of a design and build (D&B) contractor’s design liability.

My colleague, John Hughes-D’Aeth, recently blogged on the joint insurance aspects of the case, but in this blog I focus on contractual interpretation. Continue reading →

REUTERS | Insiya Syed
May 8, 2018

The cacti shop and the tattoo parlour (yes, really)

Sometimes being sent a court judgment can prove to be a welcome distraction from decision writing and that is certainly the case with HHJ Melissa Clarke’s judgment in Martinez (t/a Prick) and another v Prick Me Baby One More Time Ltd (t/a Prick) and another.

If you haven’t seen this one (and why would you, it is a decision from the Intellectual Property Enterprise Court), it is worth a read and I guarantee it will make you chuckle. It certainly made me chuckle (and the boys when I told them about it when I got home, although the names alone may have been enough to do that!). Continue reading →

REUTERS | Jean-Paul Pelissier
May 1, 2018

Court of appeal finds arbitrator in Deepwater Horizon case not biased

Section 33 of the Arbitration Act 1996 imposes a duty on arbitrators to “act fairly and impartially as between the parties” and section 24(1)(a) provides that the court has the power to remove an arbitrator if circumstances exist that “give rise to justifiable doubts as to his impartiality”.

This week I’m looking at the Court of Appeal’s decision in Halliburton Company v Chubb Bermuda Insurance Ltd and others, where the court had to decide whether an arbitrator should be removed under section 24 in circumstances where he had accepted multiple appointments in overlapping cases without telling the parties.

Continue reading →